AN APPEAL PROCEDURE FOR ART. 6.4: SOME THOUGHTS AND OPTIONS - PowerPoint PPT Presentation

AN APPEAL PROCEDURE FOR ART. 6.4: SOME THOUGHTS AND OPTIONS Christina Voigt

A. BACKGROUND B. SIX REASONS WHY C. OPTIONS

A. BACKGROUND

1. DÉJÀ VU… • CDM: disputes between private project participants and parties, and parties and the EB • Negotiations on “procedures, mechanism and institutional arrangements for appeals against the decisions of the CDM Executive Board”: significant progress, but no decision due to uncertain future of the CDM and political differences. • Changes: • Paris Agreement in place and in force, • End of KP second commitment period in 2020, • (Likely) transition of the CDM into the larger framework of the art. 6.4 mechanism

2. FROM CDM TO ART. 6.4 • Art. 6.4 objectives: Scope for diverse and complex legal relationships amongst a mix of private and public stakeholders. • Art. 6.4 activities likely have to deal with and address many of the same concerns (if not more) that were experienced by CDM participants and stakeholders. • “ In-house” appeal mechanism: Could help increasing the legitimacy of the governing structure for art. 6.4 and gaining broader support for cooperative approaches

B. SIX REASONS WHY…

1. Greater accountability 2. Enhance legitimacy 3. Better accessibility 4. More (relevant) expertise 5. Greater flexibility 6. Greater consistency

3. OPTIONS

1. POSSIBLE FUNCTIONS, GROUNDS OF APPEAL, AND OUTCOMES Administrative Review “Judicial Review” Complaints Mechanism Dispute Settlement Mechanism

Nature and Function Ground of Appeal Outcome 1. Administrative Review Consideration of appeals 1. The SB exceeded its 1. Affirm the decision of against the decisions of the competence (acted ultra the SB; or art. 6.4 supervisory body vires ), 2. Remand the request for regarding the approval, 2. The SB committed a registration or issuance rejection or alteration of procedural error, to the SB for further requests for registration of 3. The SB did not follow consideration; art. 6.4 activities, approval of this RMPs or incorrectly methodologies and the interpreted or applied or (approval of) issuance of breached one or more A6.4ERs RMPs for art. 6.4, 4. The SB erred on a question of fact available to the SB at the time of the decision, 5. Members of the SB are not qualified; 6. Members of the SB are faced with a conflict of interests, which makes impartial decisions impossible; 7. Breach of confidentiality

Nature and Function Ground of Appeal Outcome (Decisions and/or orders) 2. “Judicial” Review Review of the decisions of ditto Ditto, plus the art. 6.4 supervisory body 3. Reverse the decision regarding the approval, by the SB rejection or alteration of requests for registration of art. 6.4 activities, approval of methodologies, and the (approval of) issuance of A6.4ERs

Nature and Function Ground of Appeal Outcome (Decisions and/or orders) 3. Complaints Hearing of complaints by art. Assess allegations of 1. Make a determination Mechanism 6.4 participants (i.e. parties negative effects to people or about whether there and private entities) and the environment of art. 6.4 was any harm, affected non-party activities and review 2. If so, whether a violation stakeholder, such as whether the SB followed its of the art. 6.4 RMPs was individuals and communities, RMPs linked to the harm; who believe that they have 3. Issue an assessment or been, or are likely to be, investigation report, adversely affected by an art. 4. Make recommendations 6.4 activity

Nature and Function Ground of Appeal Outcome (Decisions and/or orders) 4. Dispute Settlement Settlement of disputes Breach of treaty or 1. Reject the claim, or Mechanism between states, or private contractual norms related to 2. Issue an award/opinion entities/investors and states. art. 6.4. Claims would need Could involve arbitration, to substantiate that in mediation, conciliation, or implementing art. 6.4 other forms of alternative activities protected interests dispute resolution (ADR). or rights have been affected. This would include (a) a statement of the facts supporting the claim; (b) the points at issue; (c) the relief or remedy sought; and (d) the legal grounds or arguments supporting the claim.

2. BODY OR INSTITUTION Independent, impartial and expert-based. Options: • Creation of a new body under the authority of the CMA; • Delegation of the authority to the Executive Secretary/SB to establish an ad-hoc or standing appeals panel (in consultation with the Bureau); • Designation of the Art. 15 Committee.